United States v. Falls

34 F.3d 674, 1994 WL 481717
CourtCourt of Appeals for the Eighth Circuit
DecidedSeptember 8, 1994
DocketNo. 93-3577, 93-3586, 93-3587 and 93-3644
StatusPublished
Cited by54 cases

This text of 34 F.3d 674 (United States v. Falls) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Falls, 34 F.3d 674, 1994 WL 481717 (8th Cir. 1994).

Opinion

HANSEN, Circuit Judge.

Eric Falls, Gregory Hedgewood, Gerald Bailey, and Anthony Johnson (the defendants) each entered conditional pleas of guilty to multiple drug-related charges. The defendants appeal the district court’s1 denial of two pretrial motions in which they claimed that the government illegally engaged in intercepting oral communications and in conducting nonaudio video surveillance of an apartment that they occupied. We affirm.

I. Background

On January 13, 1993, during the course of a criminal investigation of suspected drug trafficking activity by the defendants, th'e government applied to the Honorable Charles R. Wolle, Chief Judge, United States District Court for the Southern District of Iowa, for an order authorizing the government to intercept (i.e., “bug”) oral communications in an apartment at 4108 Hubbell Ave-[677]*677mie in Des Moines, Iowa, pursuant to 18 U.S.C. § 2518. The government also applied, relying on Federal Rule of Criminal Procedure 41(b), for an order authorizing nonaudio closed circuit television (video) surveillance of portions of the interior of the same apartment. The government supported each application with the affidavit of Special Agent James P. Donlan of the Federal Bureau of Investigation.

The affidavit named Gregory Hedgewood, Eric Falls, Timothy Earl Betts, Thelma Sarah Wyant, and Scott Turner as individuals whose oral and nonverbal communications would be intercepted. The affidavit also referred to a cooperating witness who was identified as C/W-l to mask the witness’s identity. The affidavit stated that C/W-l was a cocaine trafficker and that he/she had been inside the apartment to purchase cocaine but that he/she was not privy to the defendants’ sources, the extent of the operation, or how the organization distributed the proceeds. The affidavit also stated that C/W-l’s access to the apartment was limited out of fear for his/her personal safety. C/W-1 was actually Thelma Sarah Wyant who was named in the affidavit as one of the suspects, but neither the affidavit nor the affiant informed Chief Judge Wolle of this fact. The district court granted both applications, and from January 13 through January 29, 1993, the government engaged in electronic oral surveillance and silent video surveillance of the apartment. On January 29, based in part upon information gathered during the surveillance, the government sought and obtained a search warrant for the premises. During the search, authorities seized powder cocaine, cocaine base, and a .45 caliber semiautomatic pistol.

In June 1993, the grand jury returned a superseding indictment charging the defendants with conspiracy to distribute cocaine, engaging in a continuing criminal enterprise, engaging in financial transactions with the proceeds of drug distribution, use of a communication facility to facilitate the distribution of cocaine or cocaine base, interstate travel to distribute cocaine base, distribution of cocaine base, possession of cocaine base with intent to distribute, and carrying a firearm during a drug trafficking crime. The defendants entered pleas of not guilty at arraignment and filed pretrial motions.

The defendants moved to suppress the evidence obtained through the oral and silent video surveillance. The defendants asserted that the district court did not have the power to authorize silent video surveillance. They also argued that the government intentionally misled the district court through false information in the affidavit, that there was no need for electronic surveillance because normal investigative procedures would have been sufficient, and that the length of the surveillance exceeded the term authorized in the orders. The defendants moved to quash the search warrant, contending that it was unlawful as fruit of the poisonous tree because it was based upon information obtained through the allegedly illegal surveillance.

The district court, Judge Vietor presiding, held a hearing on the pretrial motions. Special Agent Donlan, the sole witness, testified concerning the accuracy of the information in his affidavit and the need for the oral and video surveillance. The district court overruled the motion to suppress and the motion to quash the search warrant, specifically finding that “[n]o part of [the affidavit] constituted a deliberate false statement.” (Mot. to Suppress Tr. at 82.) The defendants then entered pleas of guilty conditioned on their right to appeal the adverse rulings on their pretrial motions. The district court sentenced Eric Falls to 300 months of imprisonment, Gregory Hedgewood received 420 months of imprisonment, and Gerald Bailey received 384 months of imprisonment, each to be followed by a 10-year term of supervised release. Anthony Johnson was sentenced to 270 months of imprisonment to be followed by 5 years of supervised release. The defendants appeal the adverse rulings on their motion to suppress and motion to quash the warrant.

II. Discussion

The defendants contend that the district court erred by denying their motion to suppress and motion to quash, arguing: (1) that the district court had no power to authorize silent video surveillance; (2) that Special [678]*678Agent Donlan misled the issuing judge by-including false information in the affidavit; (3) that oral and silent video surveillance were not necessary because normal investigative procedures would have been successful; (4) that the government’s surveillance exceeded the time period authorized by the court’s order; and (5) that the search warrant was issued in violation of the Fourth Amendment.

A.

The defendants first argue that Federal Rule of Criminal Procedure 41(b) does not authorize silent video surveillance and that Title III of the Omnibus Crime Control and Safe Streets Act of 1968, amended by and retitled as Title I of the Electronic Communications Privacy Act of 1986, 18 U.S.C. §§ 2510-2520 (Title I), prohibits domestic video surveillance. The determination .of whether the district court has power to authorize silent video surveillance is a question of law, which we review de novo. See United States v. Mesa-Rincon, 911 F.2d 1433, 1435 (10th Cir.1990). While we have not previously addressed the issue, we now hold that the district court is empowered to authorize silent video surveillance in circumstances that satisfy the requirements of the Fourth Amendment.

The Fourth Amendment protects persons and their houses from unreasonable searches and seizures. U.S. Const, amend. IV. This protection certainly includes the right to be free from indiscriminate government video surveillance of the interior of an apartment. Cf. United States v. CuevasSanchez, 821 F.2d 248, 251 (5th Cir.1987) (Fourth Amendment provides freedom from indiscriminate video surveillance of backyard activity).

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Bluebook (online)
34 F.3d 674, 1994 WL 481717, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-falls-ca8-1994.